STATEMENT BY THE SPECIAL RAPPORTEUR OF THE COMMISSION ON HUMAN RIGHTS ON TORTURE Theo van Boven to the 58TH SESSION OF THE GENERAL ASSEMBLY

11 NOVEMBER 2003


Madam Chair,

Distinguished Representatives and Observers,

I. The absolute prohibition of torture; erosion of a consensus?

At the outset of my presentation I wish to share with you my preoccupation relating to the very principle which is basic to my mandate. I am deeply troubled that we are facing an erosion of the consensus principle that torture and cruel, inhuman or degrading treatment or punishment is absolutely forbidden as an imperative norm of international law. This absolute and non-derogable prohibition is enshrined in numerous instruments of international human rights and humanitarian law. Notwithstanding that practices of torture and cruel, inhuman or degrading treatment or punishment have always continued to occur in many places of all continents, no responsible authority carrying executive, legislative or judicial power would justify such practices. In this regard a strong legal and moral opinion (opinio iuris) existed.

However, in recent times this consensus is losing ground and is compromised by considerations and policies of expediency and presumed higher interests.

Let me mention a few examples and illustrations of overt and covert policies and practices that tend to undermine or in many instances do undermine the principle of absolute prohibition of torture:

- frequent resort to prolonged incommunicado detention which, as the Commission on Human Rights has repeatedly stated “may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or degrading treatment or even torture”;
- the dilution of the notion of torture and cruel, inhuman or degrading treatment or punishment so as to allow and apply in a persistent manner a variety of forms of physical force and mental pressure, instead of striving for increasingly high standards of human dignity required for the protection of human rights and fundamental freedoms;
- the creation of legal and jurisdictional limbos or human rights no-man’s-lands entailing the indefinite detention of suspects without charge under circumstances which amount to cruel, inhuman or degrading treatment or even torture;
- the deportation or transfer of suspects to places where there are – to use the wording of article 3 of the anti-torture convention – “substantial grounds for believing that they would be in danger of being subjected to torture”, as a form and practice of torture by proxy.

I am of course aware that many of such policies and practices are related to counter-terrorism measures. There can be no doubt that all acts, methods and practices of terrorism must be unequivocally condemned but at the same time as Special Rapporteur I have to insist and continue to insist on the non-derogability of the prohibition of torture and cruel, inhuman or degrading treatment or punishment under all circumstances.

II. The interim-report (doc. A/58/120)

Madam Chair,

Like in last year’s interim report I pay in the present interim report a good deal of attention to the prohibition of torture and other forms of ill-treatment in the context of anti-terrorism measures. This year emphasis is put on the role of human rights treaty monitoring bodies and regional organisations such as the Organisation of American States and the Council of Europe. After what I said a moment ago I will not further dwell on this issue which does constitute one of the crucial human rights challenges of these days.

In my report I provide information relating to the current study, specifically requested by the Commission on Human Rights, on trade in and production of equipment that is specifically designed to inflict torture or other cruel, inhuman or degrading treatment. It is my sincere wish that this study will lead to effective measures to prohibit such trade and to combat its proliferation. My report also deals with the prevention of torture and other forms of ill treatment in psychiatric institutions. I state in my report that regular monitoring of psychiatric institutions by means of in situ visits by independent bodies would greatly contribute that living conditions and treatment in such establishments comply with international standards. For this and other reasons many ratifications and an early entry into force of the Optional Protocol to the Convention against Torture, establishing a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, will be most welcome.

Madam Chair,

It is not only a requirement of justice that prompt and impartial investigations are being initiated and pursued whenever allegations of torture are made, but also that victims of torture obtain redress and are awarded adequate, effective and prompt reparation. In my report, where I deal with the issue of reparation for victims of torture, I note that torture survivors, perhaps more than other victims, encounter lack of political will on the part of public authorities to investigate and to acknowledge torture practices. Like many other victims, torture survivors often lack access to justice and to effective recourse procedures. Independent judicial and administrative agencies are unavailable and authorities are simply incapable or unwilling to set up and maintain reparation schemes and programmes for the benefit of victims. Against this background the draft “Basic principles and guidelines on the right to a remedy and reparations for victims of violations of international human rights and humanitarian law”, pending before the Commission on Human Rights, may provide a much needed instrument for rendering reparational justice to torture victims. It is encouraging that at a recent consultative meeting, held last month in Geneva with the participation of many representatives of governments, inter-governmental and non-governmental organisations, substantial progress was made in the process towards acceptance and endorsement of the principles and guidelines.

III. Ongoing activities

Madam Chair,

In my reports to the Commission on Human Rights detailed information is given on the various activities I carry out in the discharge of my mandate. Among these activities is the sending of urgent appeals to clarify the situation of persons whose circumstances give grounds to fear that they are the actual or imminent subject of treatment amounting to torture or other forms of ill treatment. These appeals serve essentially urgent humanitarian purposes in their request for clarification and relief. The circumstances leading to urgent appeals are diverse but they all have in common that an identifiable risk of torture or other forms of ill treatment exists. Such circumstances include incommunicado detention, prolonged solitary confinement, lack of essential medical care and treatment, imminent corporal punishment, and serious risk of extradition or deportation to a State or territory where the person in question would be in danger of being subjected to torture. The number of urgent appeals, either sent by the Special Rapporteur alone or jointly with other mandate holders, is constantly on the increase. Thus, between 15 December 2002 to 1 November 2003, 302 urgent appeals were sent to 63 different authorities.

Moreover, information received about allegations of torture which does not require immediate action is transmitted in the form of “allegation letters”, containing summaries of individual cases and, where applicable, general references to the phenomenon of torture. In these letters I request authorities concerned to clarify the substance of the allegations, urge them to take steps to investigate and, whenever warranted, to prosecute and impose sanctions as well as to award reparations to victims or to their relatives. In the period between 15 December 2002 to 1 November 2003, 152 allegation letters were sent to 75 different countries. As is annually emphasised by the Commission on Human Rights, these procedures require the effective cooperation of governments. In this regard I should mention that in the same period I sent 71 reminders to governments.

I wish to repeat here what I stated at earlier occasions, namely that in transmitting allegations or urgent appeals in my capacity as Special Rapporteur on Torture, I do not associate myself or condone in any way, acts or activities of the persons on behalf of whom I intervene. I must stress that no matter how wrongly, dangerously or even criminally a person may act, every human being is legally and morally entitled to protection of internationally recognized human rights and fundamental freedoms. This applies a fortiori insofar as a non-derogable right is involved such as the prohibition of torture and other cruel, inhuman or degrading treatment or punishment.

Madam Chair,

Finally, as regards fact-finding missions which allow me to gain more direct knowledge of situations falling within my mandate and which enable me to come forward with special recommendations concerning such situations, I carried out two missions since I presented my report to you a year ago. I made a mission to Uzbekistan on which I reported to the last session of the Commission on Human Rights and more recently I visited Spain and I will report on this visit to the next session of the Commission. I am in contact since quite some time with the authorities of China with a view to reaching agreement on the modalities of a fact-finding mission to China. Furthermore, a visit to Bolivia is under active consideration. Also the governments of Georgia and Nepal have, in principle, agreed to a visit. I also wish to inform you that repeated requests for invitations to carry out visits to Algeria, Egypt, India, Indonesia, Israel, the Russian Federation with respect to the Republic of Chechnya, Tunisia and Turkmenistan are still pending and remain uncomplied with. More recently I also made a request for a visit to the government of Equatorial Guinea. Much work still lies ahead to eradicate torture and to effectively prevent the continuation of this inhuman practice.

Thank you, Madam.